Court of Appeals of Texas, Fifth District, Dallas
CHARLES A. FARRIS, JESSIE FARRIS, AND ALL OTHER OCCUPANTS OF 2325 AVENUE C, GRAND PRAIRIE, TEXAS 75051, Appellants
NATIONSTAR MORTGAGE LLC F/K/A CENTEX HOME EQUITY COMPANY LLC, Appellee
Appeal from the 193rd Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-17-01834
Justices Bridges, Myers, and Osborne
Charles A. Farris, Jessie Farris, and all other occupants of
2325 Avenue C, Grand Prairie, Texas 75051, appeal from a
summary judgment granted in favor of appellee Nationstar
Mortgage, LLC, f/k/a Centex Home Equity Company, LLC. In one
issue, appellants contend Nationstar did not sufficiently
establish it was the real party in interest such that the
trial court had subject matter jurisdiction. We affirm.
and Procedural History
September 24, 2004, Charles A. Farris executed a Texas home
equity note in favor of Centex Home Equity Company, LLC, for
$35, 000. The note required Charles A. Farris to make monthly
payments in the amount of $481.14 on the first of each month
beginning November 1, 2004. Charles A. Farris and Jessie
Farris concurrently executed a Texas home equity security
instrument that secured payment of the note by encumbering
the subject property, which was located at 2325 Avenue C,
Grand Prairie, Texas 75051.
A. Farris defaulted on the note. On June 3, 2013, appellee
Nationstar Mortgage, LLC, f/k/a Centex Home Equity Company,
LLC ("Nationstar"), filed an application for an
expedited order allowing foreclosure on the property under
Texas Rule of Civil Procedure 736. See Tex. R. Civ.
P. 735.1(a) ("Rule 736 provides the procedure for
obtaining a court order, when required, to allow foreclosure
of a lien containing a power of sale in the security
instrument, declaratory instrument, or declaration creating
the lien, including a lien securing. . . a home equity loan,
reverse mortgage, or home equity line of credit. . .
."). The application alleged that the note was then 78
months past due. The 95th Judicial District Court of Dallas
County, Texas, granted the application, allowing Nationstar
to proceed with foreclosure. The property was sold at a
foreclosure sale on February 7, 2017, to The Bank of New York
Mellon f/k/a The Bank of New York, as successor in interest
to JP Morgan Chase Bank, N.A., as trustee for Centex Home
Equity Loan Trust 2005-A.
February 13, 2017, appellants Charles A. Farris, Jessie
Farris, and all other occupants of 2325 Avenue C, Grand
Prairie, Texas 75051 ("Farris") filed suit against
Nationstar seeking a declaratory judgment that Nationstar did
not establish it had the authority to foreclose. Farris also
sought a temporary injunction. Nationstar filed a traditional
motion for summary judgment, to which Farris responded, and a
hearing on Nationstar's summary judgment motion was held
on October 5, 2017. That same day, the trial court signed an
order granting Nationstar's motion for summary judgment.
Farris filed a motion for new trial, which the trial court
denied in a written order. This appeal followed.
only issue, Farris argues that Nationstar, as the plaintiff
in a Texas Rule of Civil Procedure 736 home equity loan
foreclosure action, did not sufficiently establish it was the
real party in interest such that "it could have
established the trial court's subject-matter jurisdiction
in the ancillary rule 736 action." In effect, Farris is
arguing Nationstar did not have standing to seek foreclosure
when it filed the application for an expedited order under
rule 736, and that it could not foreclose because it was not
the owner or holder of the note. As a result, according to
Farris, the court lacked subject matter jurisdiction.
review the grant of summary judgment de novo. Travelers
Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010);
Spicer v. Tex. Workforce Comm'n, 430 S.W.3d 526,
532 (Tex. App.-Dallas 2014, no pet.). A movant for
traditional summary judgment has the burden of showing there
is no genuine issue of material fact and it is entitled to
judgment as a matter of law. Tex.R.Civ.P. 166a(c); Nixon
v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.
1985); Spicer, 430 S.W.3d at 532; McCoy v. Texas
Instruments, Inc., 183 S.W.3d 548, 553 (Tex. App.--
Dallas 2006, no pet.). When reviewing a summary judgment, we
consider the evidence in the light most favorable to the
nonmovant. Mann Frankfort Stein & Lipp Advisors, Inc.
v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009);
Spicer, 430 S.W.3d at 532.
must have both standing to sue and capacity to sue.
Austin Nursing Ctr. v. Lovato, 171 S.W.3d 845, 849
(Tex. 2005). "The issue of standing focuses on whether a
party has a sufficient relationship with the lawsuit so as to
have a 'justiciable interest' in its outcome, whereas
the issue of capacity 'is conceived of as a procedural
issue dealing with the personal qualifications of a party to
litigate.'" Id. at 848 (quoting 6A Charles
Alan Wright, Arthur R. Miller, and Mary Kay Kane, Wright,
Miller & Kane, Federal Practice and Procedure: Civil 2d
§ 1559, at 441 (2d ed. 1990)). "Standing is a
prerequisite to subject-matter jurisdiction and is essential
to a court's power to decide a case." Drilltec
Technologies, Inc. v. Edwards, 64 S.W.3d 212, 214 (Tex.
App.--Houston [14th Dist.] 2001, no pet.).
does not offer an argument, nor does he identify any
evidence, showing how or why Nationstar lacked standing to
foreclose. In fact, Texas law does not require the person or
entity seeking foreclosure to be the owner or holder of the
note. See Morlock L.L.C. v. Bank of N.Y., 448 S.W.3d
514, 518 (Tex. App.-Houston [1st Dist.] 2014, pet. denied)
(noting that the Fifth Circuit had "correctly recognized
that the 'weight of Texas authority' supports the
proposition that the party owning the deed of trust need not
also show that it is the owner or holder of the note in order
to foreclose."); Morlock L.L.C. v. Nationstar Morg.
L.L.C., 447 S.W.3d 42, 47 (Tex. App.- Houston [14th
Dist.] 2014, pet. denied) ("Morlock's allegation
that Nationstar is not the owner or holder of the Note is
irrelevant with respect to Nationstar's right to enforce
the Deed of Trust through non-judicial foreclosure under
Texas law."); Farkas v. Aurora Loan Services,
LLC, No. 05-12-01095-CV, 2013 WL 6198344, at *4 (Tex.
App.-Dallas Nov. 26, 2013, pet. denied) ("A party
asserting an interest under the deed of trust is not required
to possess the corresponding note as a prerequisite to
foreclose."); Lowery v. Bank of Am., N.A., No.
04-12-729-CV, 2013 WL 5762227, at *2 (Tex. App.-San Antonio
Oct. 23, 2013, no pet.) ("A promissory note and the deed
of trust that secures the note constitute two separate and
severable obligations of the debtor-mortgagor, each with its
own distinct remedy for the breach of those
evidence in the summary judgment record shows that
Nationstar, as the mortgage servicer, had the authority to
enforce the power of sale conferred by the deed of trust. In
the original foreclosure matter, Nationstar moved to
foreclose in its role as the mortgage servicer of the subject
home equity loan. The application stated in part:
"Nationstar Mortgage, LLC is acting as the Mortgage
Servicer for JP Morgan Chase, Trustee 2005-A, the Mortgagee
of the Note and Security Instrument identified below.
Nationstar Mortgage, LLC is authorized to represent the
Mortgagee by virtue of a servicing agreement with the
Mortgagee." In an affidavit attached to the application,
a Nationstar employee affirmed that Nationstar was acting in
its role as the servicing agent for the mortgagee. The
affidavit also affirmed that, at the time the application was
filed, (1) the note was 78 months past due; (2) the amount
required to cure the default was $80, 404.22; and (3) the
amount required to pay off the lien was $86, 691.95. But
Farris nonetheless argues that "[t]he evidence at trial